FEDERAL COURT OF AUSTRALIA

Croker v Philips Electronics Australia Limited [2002] FCA 1393

CLAYTON ROBERT CROKER V PHILIPS ELECTRONICS AUSTRALIA LIMITED & ORS

SACKVILLE J

SYDNEY

12 NOVEMBER 2002

THE COURT ORDERS THAT:

1.                  The Registrar should refuse to accept the application and affidavit presented by Mr Croker for filing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Mr Croker, to whom I shall refer as “the applicant”, has sought to file an application and an affidavit in the Registry of this Court.  A Registrar has sought a direction from me, as Duty Judge, pursuant to Federal Court Rules (“FCR”) O 46 r 7A.  Order 46 r 7A provides as follows:

“If a document presented to a Registrar in any proceeding, including any document which is or will if issue  become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him -

(a)               to accept or issue it; or

(b)               to refuse to accept or issue it; or

(c)               to refuse to accept or issue it without the leave of a Judge first had and obtained.”

2                     The application seeks an order “annulling all dealings between the applicant and all respondent’s [sic]”.  The application also seeks an order awarding the applicant the sum of $3 million “or such other sum as the Court deems fit in compensatory, exemplary and nominal damages”.

3                     The affidavit is not easy to follow.  It seems, however, that the applicant’s complaint concerns the purchase of a single mobile phone as long ago as November 1999.  The price of the telephone appears to have been $79.00.

4                     This is not the first time the applicant has sought to make a complaint about the purchase of the mobile telephone.  In Croker v Philips Electronics Australia Ltd (N 197 of 2000), the applicant made similar claims.

5                     In a judgment given on 17 July 2000, Branson J ordered that the applicant’s statement of claim in those proceedings be struck out, but that he have leave to file and serve further pleadings: Croker v Philips Electronics Australia Ltd [2000] FCA 991.  Her Honour made the orders striking out the statement of claim because the pleading was so defective that it would be plainly embarrassing to require any respondent to answer it.

6                     On 19 October 2000, following the applicant’s attempt to replead, Branson J ordered that the proceedings be dismissed: Croker v Philips Electronics Australia Ltd [2000] FCA 1516.  Her Honour held that the fresh statement of claim relied on by the applicant should be struck out, since it had a tendency to cause prejudice, embarrassment and delay to the proceedings.  Her Honour considered that the applicant should not be given leave to replead his case.  Her Honour said this (at [12]):

The proceeding concerns the purchase of a single mobile telephone.  This Court is not, as I have drawn to the applicant’s attention on previous occasions, an appropriate forum for the resolution of minor disputes of this kind.  There are consumer tribunals and courts of limited jurisdiction which can hear and determine complaints of the type which the applicant wishes to advance in this proceeding.  Indeed, it appears that the applicant has already made two applications to the Fair Trading Tribunal of New South Wales arising out of his purchase of the mobile telephone.  The parties have already been before the Court on this proceeding on six occasions.  No doubt the costs of the respondents are mounting.  Court time is being taken up with little, if any, commensurate public benefit.  The applicant has had two opportunities to plead his case and has not been able to do so in an acceptable way.  I have no reason to think that he will be able to do so in the future …”.

7                     The applicant subsequently sought an extension of time within which to file an application for leave to appeal from Branson J’s interlocutory judgment.  His application failed: Croker v Philips Electronics Australia Ltd [2000] FCA 1731.  A misconceived application for leave to appeal from the judgment was also dismissed: Croker v Philips Electronics Australia Ltd [2000] FCA 1935.

8                     In his latest attempt to agitate the same questions, the applicant apparently has sought to avoid the need to plead his case by filing an affidavit.  The affidavit does not make clear either the material facts or the causes of action upon which the applicant intends to rely against the respondents.  On the face of it, the proceedings are no closer now than they were in 2000 to being presented in a form that would enable the respondents to understand the case the applicant seeks to make out against them.

9                     It also remains true that, if the applicant has a genuine complaint against one or more of the respondents, there are tribunals which have jurisdiction to hear and determine such complaints in an expeditious manner.  The applicant does not make the proceedings suitable for determination in this Court simply by arbitrarily selecting the figure of $3 million as the appropriate compensation for a complaint arising out of a consumer transaction involving the purchase of a telephone.

10                  In my view, these proceedings are an abuse of the process of the Court, or alternatively, frivolous or vexatious within the meaning of FCR,O 46 r 7A.  I therefore direct the Registrar to refuse to accept the application and affidavit sought to be filed by the applicant.

Associate:

Dated:              12 November 2002